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The Story Of The Desert Island And Antonin Scalia

June 15, 1993

WASHINGTON (AP) _ At a recent lunch with law clerks, conservative Supreme Court Justice Antonin Scalia was asked to choose among liberals. ″If you had to spend the rest of your life on a desert island with (Harvard law professor) Laurence Tribe or (New York Governor) Mario Cuomo, which would you choose?″

His answer: ″Ruth Bader Ginsburg.″

Scalia may be spending the rest of his professional life with Ginsburg, named Monday as President Clinton’s first Supreme Court pick, to replace the retiring Byron R. White.

Once formally nominated, she must be confirmed by the Senate.

Scalia and other conservative judges - Robert Bork and Clarence Thomas among them - who worked with Ginsburg on the U.S. Circuit Court of Appeals for the District of Columbia are known to regard her highly.

But legal experts say she’s more likely to find a home at the Supreme Court’s moderate middle.

A radically innovative lawyer who became a cautious, centrist judge, Ginsburg’s judicial philosophy seems to match that of Justices Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter.

Those three emerged last year as a powerful coalition, helping frustrate the more conservative Chief Justice William H. Rehnquist, Scalia and Thomas by reaffirming the right to abortion and a ban on officially sponsored school prayers.

In both cases, White joined the court’s conservative bloc in dissent.

Justices Harry A. Blackmun and John Paul Stevens, two lifelong Republicans who are now the court’s most liberal members, joined the moderates to forge the slender majorities.

Ginsburg’s replacing the retiring Justice Byron R. White almost surely turns a 5-4 court on abortion rights to a 6-3 court.

But those who know Ginsburg and her work shy away from predicting how she would vote on such thorny issues as affirmative action, school prayer or homosexual rights.

″It’s a little hard to predict just where she will fit in on this court,″ said Harvard’s Tribe. ″Certainly in some areas - free-speech, free-press, personal autonomy - she will represent a shift from Justice White’s conservatism.″

Northwestern University law professor Jane Larson said Ginsburg’s 13 years on the federal bench proves a political liberal can become a judicial conservative.

″To have called her a moderate 25 years ago would have been ridiculous,″ Larson said, referring to the ground-breaking cases on women’s rights Ginsburg took to the Supreme Court. ″She not only argued the cases, she invented the theory. Sexual equality in the law truly was a radical departure.″

Today the 60-year-old judge can be called a moderate or centrist, Larson said, because ″the rest of the country has caught up to Ruth Bader Ginsburg.″

Ginsburg’s writings - over 300 court opinions, several books and numerous articles in legal publications - reflect a concern for equality, individual liberty and the dangers of excessively curbing court access to those with legal grievances.

But throughout her judicial work runs a pronounced deference to the decisions and policy judgments of the legislative and executive branches.

Any justice’s impact is more, or sometimes less, than his or her political and jurisprudential views. A justice’s personality and style, and how those qualities fit into the group dynamics, are part of the mix as well.

White has been a team player but not a coalition builder. He made up his mind, cast his vote and generally did not see the need to search out likely allies.

In naming Ginsburg, Clinton called her ″a force for consensus building.″

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